DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metro Tasmania Pty Ltd T/A Metro
(AG2020/1944)

METRO TASMANIA BUS OPERATORS ENTERPRISE AGREEMENT 2020

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 SEPTEMBER 2020

Application for approval of the Metro Tasmania Bus Operators Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Metro Tasmania Bus Operators Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Metro Tasmania Pty Ltd T/A Metro. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I note that Clauses 29.5, 32, 12.2(b) are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 7(b) of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[7] The Notice of Representational Rights (Notice) provided with the Application contained the incorrect Agreement title, specifically, the title in the Notice contained the date of ‘2018’ whilst the Agreement title contained ‘2020’. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[8] The Australian Rail Tram and Bus Industry Union (RTBU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 September 2020. The nominal expiry date of the Agreement is 16 September 2024.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

Metro Tasmania Pty Ltd T/A Metro applied to the Fair Work Commission for approval of the Metro Tasmania Bus Operators Enterprise Agreement 2020. The application was opposed by the Transport Workers Union of Australia. The dispute centred around the provisions of the enterprise agreement, particularly those relating to the classification of bus drivers and the associated pay rates. The Commission was required to determine whether the agreement met the statutory requirements for approval and if it provided for the minimum entitlements as set out in the Fair Work Act 2009.

The legal issues before the Commission involved assessing whether the agreement contained all the mandatory terms and conditions as stipulated by the Fair Work Act, and whether it provided for the minimum entitlements, including minimum wages, penalty rates, leave provisions, and other conditions of employment. The Commission also needed to consider whether the agreement was in the best interests of the employees and whether it was fairly negotiated.

The Commission found that the enterprise agreement substantially complied with the requirements of the Fair Work Act. It contained all the mandatory terms and conditions and provided for the minimum entitlements. The Commission was satisfied that the agreement was fairly negotiated and in the best interests of the employees. The Transport Workers Union of Australia's objections were dismissed, and the application for approval was granted.

The Commission approved the Metro Tasmania Bus Operators Enterprise Agreement 2020, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by it. The approval was subject to the parties adhering to the terms and conditions set out in the agreement.

Metro Tasmania Pty Ltd T/A Metro

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established